- The Washington Times - Wednesday, November 30, 2005

A federal judge yesterday denied the latest attempt by the maker of BlackBerry portable e-mail devices to delay a lawsuit against it by a McLean patent company.

The ruling means the judge could shut down BlackBerry service for about 3 million users in the United States or the Canadian company may have to pay more than a disputed $450 million agreement to settle the suit.

U.S. District Judge James R. Spencer in Richmond said he did not agree with Waterloo, Ontario, company Research in Motion’s argument that the U.S. Patent and Trademark Office would soon finish its re-examination of five patents held by NTP Inc. that the government agency previously denied.

The judge denied the BlackBerry maker’s fourth motion to delay the case until the patent office’s reviews were complete and declared invalid the $450 million settlement agreement between Research in Motion and McLean company NTP.

He did not rule on reissuing an injunction that threatened to shut down BlackBerry service in the United States, where many of the device’s 3.65 million users are based.



“The court recognizes the rights of a patent holder whose patents have been infringed,” Judge Spencer wrote in his decision.

NTP attorney James Wallace Jr. said the decision was “pretty much as predicted,” and that Judge Spencer’s ruling indicated his desire to soon conclude to the case, which began more than four years ago.

During a Nov. 9 hearing, Judge Spencer seemed to be losing his patience: “I have spent enough of my time and life involved with NTP and RIM. So we are going to deal with this swiftly, get it out of the way, and then you all can go wherever you go when you leave me.”

Also during that hearing, the judge hinted that he would not delay the case to wait for the patent office findings. “I don’t run their business and they don’t run mine,” he said.

Brigid Quinn, a spokeswoman for the Patent and Trademark Office, said patent re-examinations take an average of 21 months and the goal is to finish them in no more than two years, but some can take longer.

She would not comment specifically on the five patents being re-examined in the BlackBerry case, but a search of the patent office’s Web site showed that the re-examination of all five started nearly three years ago.

NTP’s suit states that any injunction would not include government or emergency services personnel, but the Justice Department filed a statement of interest in the case Nov. 8 that detailed concerns about BlackBerry service being shut down for hundreds of thousands of government users.

“We’ve assured the government that we’re not going to shut the government down,” Mr. Wallace said.

In October, a federal appeals court refused to stay the injunction against Research in Motion, and the Supreme Court declined to hear the case. But the BlackBerry maker issued a statement yesterday that said it will be filing another request with the Supreme Court.

The statement also said that in the event of an injunction, the company has been “preparing software workaround designs” to maintain U.S. operations.

Judge Spencer, who was appointed to the U.S. District Court for the Eastern District of Virginia by President Reagan in 1986, did not set a timetable but said the court will be contacting the companies to set a hearing date on the issues of an injunction and damages.

Mr. Wallace, a partner at Wiley Rein & Fielding in Washington, said he expects a final decision within weeks, not months, and was optimistic about the prospects of Research in Motion reopening negotiations. Settlement terms between the two companies were in place in March, but fell apart in June.

cThis article is based in part on wire service reports.

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